The law guarantees freedom of speech for all. Everyone has a right to seek redress for false allegations, and perpetrators may also be prosecuted. So, is the Senate’s bid to further criminalise certain aspects of the media practice justifiable? ROBERT EGBE writes.
It is déjà vu. 1984 is knocking on the Senate’s door. Last Wednesday, a bill seeking to prevent frivolous petitions against and abuse of public officers scaled the second reading and was referred to the Committee on Judiciary, Human Rights and Legal Matters by Senate President Bukola Saraki.
It was sponsored by Deputy Senate Leader Senator Bala Ibn Na’Allah (Kebbi South). Like Decree 4 of 31 years ago, it intends to protect public officers from false accusations .
If passed into law, the bill, entitled: “An Act to prohibit frivolous petitions and other matters connected therewith”, will punish those found guilty with imprisonment “for a term of two years or a fine of N200,000” on conviction for acting, using or causing to be used any petition or complaint not accompanied by a sworn affidavit.”
It also provides a mandatory six-month jail term without an option of fine for any person that unlawfully uses, publishes or causes to be published any petition, or complaint not supported by a sworn affidavit.
Two of its sections have particular consequences for the country’s 97 million internet users.
Section 4 says: Where any person through text message, tweets, WhatsApp or through any social media, posts any abusive statement knowing same to be false, with intent to set the public against any person and/or group of persons, an institution of government or such other bodies established by law shall be guilty of an offence and upon conviction shall be liable to imprisonment for two years or a fine of N2 million or both such fine and imprisonment.
Section 3: Where any person in order to circumvent this law makes any allegation and or publish any statement, petition in any paper, radio, or any medium of whatever description, with malicious intent to discredit or set the public against any person or group of persons, institutions of government, he shall be guilty of an offence and upon conviction shall be liable to an imprisonment term of two years or a fine of N4 million.
The bill has received support from senators, including Saraki, Dino Melaye (Kogi West), and Mrs. Biodun Olujimi (Ekiti South).
“People must be held responsible for their actions. I believe what has been raised is important,” Saraki was quoted saying.
What the existing laws say
Nigeria already has a system of laws that deals with false allegations in criminal and civil courts, while the Constitution guarentees right to freedom of expression.
Analysts say the bill gives no explanation as to what it terms ‘abusive statements’.
Defamation, whether in written (libel) or spoken form (slander) is already covered by the Cybercrime Act and Criminal Code.
Sedition, a related law, is also covered under the Criminal Code Act. Most states also have local versions of these laws.
Section 24 (1) (b) of the Cybercrime Act states: A person who knowingly or intentionally sends a message or other matter by means of computer systems of network that (b) he knows to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill-will or needless anxiety to another or causes such a message to be sent commits an offence under this Act and is liable on conviction to a fine of not more than N7,000 or imprisonment for a term of not more than three years or both.
Section 375 of the Criminal Code states: Any person who publishes any defamatory matter is guilty of a misdemeanour, and is liable to imprisonment for one year; and any person who publishes any defamatory matter knowing it to be false is liable to imprisonment for two years.
Right to freedom of expression
The right to freedom of expression is guaranteed and protected both domestically and internationally.
Section 39 (1) of the 1999 Constitution of Nigeria state: Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
The right to freedom of expression is also guaranteed by Article 19 of the Universal Declaration on Human Rights, Article 19 of the International Covenant on Civil and Political Rights and Article 9 of the African Charter on Human and Peoples Rights.
Any need for social media regulation?
The need to balance the delicate relationship between the right to freedom of speech on the one hand and the right to protection from injury to a person’s reputation on the other, has led to the prosecution of persons for defamatory acts via the internet.
On August 25, the Police Special Fraud Unit (SFU) arraigned the publisher of Best of Nollywood magazine, Mr. Seun Oloketuyi, at the Federal High Court in Lagos, over a story published on his website www.naijahottestgist.com.
He was charged under Section 24(1)(b) of the Cybercrime (Prohibition) Act, 2015 and Section 375 of the Criminal Code Act, Cap C38.
On September 29, the police arraigned a blogger, Emmanuel Ojo, before an Ogun State Magistrate’s Court, for allegedly writing a false report against the wife of the Ogun State Governor, Mrs. Olufunso Amosun.
Ojo was accused of publishing false information with the intent to malign and cause hatred against the wife of the governor which is punishable under Section 516 of Criminal Code Cap 24 vol. 2 Laws of Ogun State of Nigeria, 2006.
Another blogger, Desmond Chima, was also arraigned before Justice Mohammed Yunusa of a Federal High Court in Lagos for allegedly posting two offensive stories on the internet against the Managing Director of United Bank for Africa, Philips Oduoza.
The police alleged that Chima violated Section 24(1)(b) of the Cybercrime (Prohibition, Prevention, etc) Act, Laws of the Federation of Nigeria 2015.
Lawyers react
Prof Kanyinsola Ajayi, a Senior Advocate of Nigeria (SAN), disagreed with the Senate. He said the bill would chip away at press freedom.
He said: “If the bill is passed into law, it would be retrogressive because it would take us back to an era that we don’t want to see. In Nigerian history, I guess the worst period was in 1984, with the then Head of State now the President who clearly now has moved away from that kind of position.
“To go back to a state where we cannot express ourselves as citizens, where public officials refuse to wear the garb of honour that is a shield against false allegations, this means that our senators themselves are naked and are not clothed in honour, because if they were, they would not be worried about criticisms or even false allegations.”
Ajayi said the existing laws that deal with false allegations in criminal and civil courts are adequate.
“We have laws on sedition, defamation and libel; why should anybody fear?” he said.
“It’s a really sad business and my hope is that if the law is passed by the National Assembly, the president will withhold assent and there’ll be no majority to override the president’s power.”
The National President of the Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu, argues that although freedom of speech does not guarantee reckless statements, it does not also impose what to say on the people who wish to express themselves.
He said: “Even if you have a useless statement to make, you should be able to make it, provided you don’t defame anyone and even if you do defame anyone that is a different category of law called the law of defamation under Torts.
“The attempt through the bill to gag that right must be seriously challenged and is bound to fail because it will contravene the express provision of the constitution. And by virtue of Section 1(3) of the Constitution that other law is null, void and of no effect to the extent of its inconsistency with the constitution.”
Ugwummadu, a lawyer-activist, continued: “There are also a plethora of statues already in existence namely the Freedom of Information Act, the Cybercrime Act, the law of defamation, libel and so on and so forth that have effectively taken care of the aspects that are preoccupying the Senate.”
Public interest lawyer Jiti Ogunye said the Senate’s action will breach Nigeria’s international obligations.
“What some senators propose to use the Senate to accomplish is illegal and unconstitutional. It is also highly immoral,” he said.
“The right to freedom of expression is not a right that is entrenched in our local laws alone. It is not guaranteed by our Constitution alone. It is a right that is recognised by the United Nations Charter and all other protocols of the UN.”
Ogunye continued: “What the Senate seeks to do by the legislation in Nigeria will not only assault the constitutionally-guaranteed right to freedom of expression, it will also breach the international obligations of Nigeria, as a signatory to all the UN protocols that guarantee the right to freedom of expression.”
Socio-Economic Rights and Accountability Project (SERAP) Executive Director Adetokunbo Mumuni was concerned that rather than increasing universal and inclusive access to the internet for all Nigerians, the Senate is working to undermine access.
He said: ”By initiating this bill, the National Assembly is impermissibly restricting the ability of the citizens to use these tools to communicate, connect, and seek independent sources of information.”
“SERAP also contended that the bill would restrain access to internet and social media, curtail the freedom of the press, and online content in illegitimate, disproportionate, or otherwise unlawful and abusive ways.”
Mumuni said the real targets of the bill are social media and human rights defenders that might be critical of government policies or report on corruption involving high-ranking government officials.
He continued: “The bill will have a chilling effect on freedom of expression, as it will create an atmosphere of fear among bloggers and online activists who may not post critical commentary on Facebook or other social media platforms for fear of being sent to jail.
“The Internet cannot enable citizens and others to participate in governance or critique government policy if they cannot freely access information, use social media services, or if they fear being sent to jail simply for expressing their views.”
SERAP has urged the United Nations to request the senate, to withdraw the bill.
